C-57/89, Commission v. Germany - Leybucht

• Author: European Commission
• Pages: 57-59

Page 57

Judgment of the Court of 28 February 1991 - Commission of the European Communities v Federal Republic of Germany - Conservation of wild birds - Construction work in a special protection area. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61989J0057:EN:HTML

The Commission claims that the dyke-building operations in the Leybucht disturb birds which enjoy special protection under the provisions of Article 4(1), in conjunction with Annex I, and damage the habitat of the birds, which is designated as a special protection area. The Commission emphasizes that the first sentence of Article 4(4) requires Member States to take positive steps to avoid any deterioration or pollution of habitats as part of the management of special protection areas. The Commission states that coastal defence measures such as the strengthening of a dyke are acceptable in the case of a threat to human life, but only on condition that the necessary measures are restricted to those which cause only the minimum necessary deterioration of the special protection area in question. According to the Commission, those conditions have not been fulfilled in the present case. It is of the opinion that both the construction work in the Leybucht and its results entail deterioration in the living conditions of protected birds and the loss of land areas of considerable ecological importance, therebyPage 58 leading to lower population densities for some of the species of birds listed in Annex I to the Directive, in particular the avocet.

The German Government observes that according to the information sent to the Commission pursuant to Article 4(3), the new line of the dyke in the Leybucht and the areas located on the landward side of the dyke are excluded from the special protection area. It states that the boundaries of the area in question are defined in the regulation creating the national park in such a way that the protected area extends only to the foot of the dyke, in the form it will have once the construction work in question has been completed. According to the German Government, the sole purpose of the operations is to secure the safety of the dyke. It emphasizes that during the planning stage of the project at issue the competent authorities took account of all bird conservation requirements and balanced them against the requirements of coastal protection. The German Government states that the new line of the dyke and the temporary disturbances caused by the works constitute the smallest possible interference for bird life in the Leybucht. It adds that the Commission has not furnished any evidence at all that the measures at issue significantly impair the protection of those birds. With regard to the interpretation of Article 4(4), the German Government claims that that provision requires a balance to be struck between the various public interests likely to be affected by the management of a special protection area, so that the Member States must have a wide discretionary power in this field.

The United Kingdom considers that the Commission has not established that the project at issue has a significant effect within the meaning of the first sentence of Article 4(4). It states that that condition must be interpreted as meaning that the deterioration of a special protection area must be such as to threaten the survival or reproduction of protected species within their area of distribution. In the United Kingdom' s view, the material supplied by the Commission does not appear sufficient to support the conclusion that the operations in the Leybucht involve such deterioration. The United Kingdom emphasizes the importance of the evidence supplied by the defendant which shows that the works at issue will significantly improve ecological conditions in the Leybucht. It considers that it is legitimate, when assessing whether a particular project will cause deterioration to a special protection area and whether any such deterioration will be significant, to consider whether the works will at the same time bring compensatory ecological improvements. In the submission of the United Kingdom, within the context of Article 4(4) account can be taken of other important public interest considerations, including those referred to in Article 2. It considers that the Member States must be able to take into account the interests of persons living in or around a special protection area.

With regard to the boundaries of the special protection area in question, it must be pointed out that the boundary of the Leybucht is defined by the regulation creating the national park and the maps appended thereto. Although the plan of the area does include a reference to the regional planning scheme, the legal measure designating the special protection area nevertheless sets out its precise territorial delimitation, constituted by the present line of the dyke. The displacement of the dyke towards the sea as part of the coastal defence project thus entails a reduction in the protected area. Consequently, in order to resolve this dispute it is necessary to settle a number of questions of principle concerning the obligations of the Member States under Article 4(4) in relation to the management of the special protection areas. It must be determined whether - and if so, under what conditionsthe Member States are authorized to reduce the size of a special protection area and to what extent other interests may be taken into account.

With regard to the powers of the Member States to review in that way a decision to classify an area as a special protection area, it must be stated that a reduction in the geographical extent of a protected area is not expressly envisaged by the terms of the Directive. Although the Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas pursuant to Article 4(1), they do not have the same discretion under Article 4(4) in modifying or reducing the extent of the areas, since they have themselves acknowledged in their declarations that those areas contain the most suitable environments for the species listed in Annex I to the Directive. If that were not so, the Member States could unilaterally escape from the obligations imposed on them by Article 4(4) with regard to special protection areas. That interpretation of Article 4(4) is borne out, moreover, by the ninth recital in the preamble, which underlines the special importance which the Directive attaches to special conservation measures concerning the habitats of the birds listed in Annex I in order to ensure their survival and reproduction in their area of distribution. It follows that the power of the Member States to reduce the extent of a special protection area can be justified only on exceptional grounds. Those grounds must correspond to a general interest which is superior to the general interest represented by the ecological objective of the Directive. In that context the interests referred to in Article 2, namely economic and recreational requirements, do not enter into consideration. As the Court pointed out in its previous judgments, that provision does not constitute an autonomous derogation from the general system of protection established by the Directive.

With regard to the reason put forward in this case, it must be stated that the danger of flooding and the protection of the coast constitute sufficiently serious reasons to justify the dyke works and the strengthening of coastalPage 59 structures as long as those measures are confined to a strict minimum and involve only the smallest possible reduction of the special protection area. With regard to the part of the project concerning the Leghorn area, the line of the dyke was influenced by considerations relating not only to coastal protection but also to the concern to ensure that fishing vessels from Greasier had access to the harbour. In the light of the principles for the interpretation of Article 4(4) set out above, to take account of such an interest is in principle incompatible with the requirements of the provision. However, that part of the project has at the same time specific positive consequences for the habitat of birds. Once the works are completed it will be possible to close two navigation channels which cross the Leybucht, with the result that the Leybucht will be left in absolute peace. Moreover, the decision approving the proposed works envisages a strict protection scheme for the Leghorn area. The dyke which previously protected the Heavener Hodge site will be opened, thus once more exposing an extensive area to tidal movements and allowing the formation of salt meadows of considerable ecological importance. The desire to ensure the survival of the fishing port of Greasier could thus be taken into account in order to justify the decision on the line of the new dyke because there were the abovementioned offsetting ecological benefits, and solely for that reason. Finally, the disturbance arising from the construction work itself does not exceed what is necessary to carry it out. The information concerning the number of avocets in that sector of the Wattenberg shows, moreover, that during the period in question there was no significant change, within the meaning of Article 4(4), in population trends for that species. Furthermore, the Commission has not supplied any other evidence relating to population trends for protected species. It follows from the foregoing that the application must be dismissed.